Writ Petition No. 21080 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 21080 OF 2023 (LB-RES) C/W WRIT PETITION NO. 7466 OF 2024 (LB-RES) IN W.P. NO.21080/2023 BETWEEN: SHRI KRISHNARAO KODANCHA AGED ABOUT 65 YEARS S/O LATE HARIRAMKRISHNA RAO COUNCILOR, CHITPADI WARD UDUPI - 576 101 Digitally signed by VIDYA G R Location: HIGH COURT OF KARNATAKA (BY SRI SUYOG HERALE E., ADVOCATE) … PETITIONER AND: 1. 2. THE STATE OF KARNATAKA DIRECTORATE OF MUNICIPAL ADMINISTRATION 9TH AND 10TH FLOOR, VISVESVARAYA GOPURAM DR. B.R. AMBEDKAR VEEDHI BENGALURU - 560 001. THE CITY MUNICIPALITY UDUPI REP. BY ITS COMMISSIONER K M MARG, UDUPI UDUPI DISTRICT - 576 101. - 2 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 3. 4. UDUPI URBAN DEVELOPMENT AUTHORITY (UUDA) REP. BY ITS COMMISSIONER UDUPI MALPE MAIN ROAD ADIUDUPI, UDUPI - 576 103. CHOSEN GENERATIONS MINISTRIES ® A PUBLIC CHARITABLE AND RELIGIOUS TRUST UDUPI - 576 101 REP. BY ITS TREASURER SHRI MANOHAR VEIGAS AGED ABOUT 53 YEARS S/O LATE SHRI VALERIAN VEIGAS FLAT NO.203, RIVIERA RESIDENCY LBS ROAD, AJJARKAD UDUPI. ... RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1; SRI T.I. ABDULLA, ADVOCATE FOR R2; SRI K.B. PRASAD HEGDE, ADVOCATE FOR R3; SMT. S. SUSHEELA, SENIOR COUNSEL FOR SRI S. VICTOR MANOHARAN, ADVCOATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASHING THE IMPUGNED COMUUNICATION NO.UNASA.B1.CR.26/546/ 2023- 24 DATED 27.07.2023 ISSUED BY THE RESPONDENT NO.2 IN THE INTEREST OF JUSTICE (PRODUCED AT ANNEXURE A) AND ETC. IN W.P. NO.7466/2024 BETWEEN: CHOSEN GENERATIONS MINISTRIES ® A PUBLIC CHARITABLE AND RELIGIOUS TRUST UDUPI - 576 101 REPRESENTED BY ITS TREASURER - 3 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR MR. MANOHAR VEIGAS AGE 53 YEARS S/O VALERIAN VEIGAS REGISTERED UNDER DEED OF TRUST DATED 28.07.2024 AT ANNEXURE-A (BY SMT. S. SUSHEELA, SENIOR COUNSEL FOR SRI VICTOR MANOHARAN S., ADVOCATE) … PETITIONER AND: 1. 2. 3. THE STATE OF KARNATAKA BY ITS DIRECTORATE OF MUNICIPAL ADMINISTRATION 9TH AND 10TH FLOOR, VISVESVARAYA GOPURAM DR. B.R. AMBEDKAR VEEDHI BENGALURU - 560 001. THE CITY MUNICIPALITY UDUPI BY ITS COMMISSIONER K M MARG, UDUPI UDUPI DISTRICT - 576 101. UDUPI URBAN DEVELOPMENT AUTHORITY (UUDA) BY ITS COMMISSIONER UDUPI MALPE MAIN ROAD ADIUDUPI, UDUPI - 576 103.
Legal Reasoning
4. MR. KRISHNA RAO KODANCHA AGE 65 YEARS S/O LATE HARIRAMAKRISHNA RAO COUNCILOR, CHITPADI WARD UDUPI - 576 101 … RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1; SRI T.I. ABDULLA, ADVOCATE FOR R2; SRI K.B. PRASAD HEGDE, ADVOCATE FOR R3; SRI SUYOG HERALE E., ADVOCATE FOR R4) - 4 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDERS BEARING NO.UNS.B1.CR.26/546/2023-24 DATED 15.02.2024 ISSUED BY THE RESPONDENT NO.2 PRODUCED AT ANNEXURE R AND ETC. THESE WRIT PETITIONS HAVING BEEN HEARD AND FOR RESERVED ON 17.04.2025 AND COMING ON PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: CAV ORDER In Writ Petition No.21080/2023, the petitioner - Sri Krishnarao Kodancha has assailed the communication dated 27.07.2023 issued by respondent No.2 - City Municipality, Udupi, which is produced at Annexure-'A'. In terms of the said communication, the City Municipality has opined that no action could be taken on the complaint made as regards the licence granted to construct the Community Hall in light of the order passed by the Court of III Additional Civil Judge and JMFC, Udupi on 01.07.2023 in O.S.No.328/2023. Krishnarao Kodancha (hereinafter referred to as 'the complainant') has also sought for issuance of writ in the nature of mandamus to direct the respondent City Municipality, Udupi, to consider - 5 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR the representation dated 23.03.2023 made by the petitioner and to take steps to cancel the licence granted to Chosen Generations Ministries (Registered), a Public Charitable and Religious Trust for construction of building. 2. W.P. No.7466/2024 has been filed by Chosen Generations Ministries which is a registered Public Charitable and Religious Trust (hereinafter referred to as 'the Trust'), calling in question the legality of the order at Annexure-'R' dated 15.02.2024 passed by the City Municipality, Udupi, cancelling the Building Licence issued to the said Trust. In the said impugned order dated 15.02.2024, the City Municipality, Udupi, has observed that the file of the petitioner seeking sanction plan was sent to Udupi Urban Development Authority who has opined that in terms of the "Master Plan - (Revision 1) of Udupi-Malpe Planning Area - 2021 Zoning Regulation & Building Bye-Law" (for short 'the Zonal Regulations') of the Authority, there is no provision for granting permission to construct Community Hall. It was further observed that - 6 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR there was variance with application of the Trust and purpose mentioned therein vis-à-vis the purpose mentioned in the Plan that is sanctioned. Accordingly, the Authority had directed the City Municipality to take appropriate action to cancel the Plan in light of violation of the conditions of the Plan. After issuing notices under Section 187 of the Karnataka Municipality Act, 1964, (for short 'the Act'), an order is passed to cancel the building licence granted. 3. In light of both the Writ Petitions seeking relief relating to an identical factual matrix, both the Writ Petitions are taken up together and disposed off by a common order. 4. It is the case of the complainant that construction of a Community Hall by the respondent No.4 on the basis of licence issued is in deviation of the sanctioned plan which was impermissible. - 7 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 5. The complainant had submitted that the Trust is an entity with its office in New York in the United States of America and in a property converted for 'Residential Use', licence being issued for Community Hall/Prayer Hall without eliciting the objections of the residents is illegal and accordingly, had requested for action to be taken by the Authorities. In terms of Annexure-'B' (W.P.No.21080/2023) representation made, it was specifically averred that in the place where the proposed Community Hall is being constructed, there are no people belonging to the Community with respect to whom the Community Hall has been constructed. 6. It was also represented that in the vicinity, there are people belonging to the Hindu Community and other Backward Classes and that, if the Community Hall is permitted to be constructed, there is a possibility of communal disharmony in the future. - 8 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 7. It is submitted that though Civil Suit in O.S.No.328/2023 was filed by the Trust making the City Municipality, Udupi as the party, however, the Authorities are still vested with power to take appropriate action in the event of any deviation in the plan. 8. The complainant further submits that the proposed building of the Trust which is sought to be used as a Prayer Hall would potentially cause trouble and enmity amongst the different sections of the Society. 9. It is further submitted by the complainant that the conversion of land was for 'residential purpose', but the plan has been obtained for Community Hall. It is submitted that the Community Hall is impermissible in the residential area. 10. On the other hand, the Trust would contend that the plan itself was obtained for Community Hall and in terms of the Zoning Regulations, Community Hall/Prayer Hall is permissible in the residential area. - 9 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 11. It is further submitted that the Civil Court in a suit filed in O.S.No.328/2023 by the Trust against the local residents as well as the City Municipality had allowed the application (I.A.No.II) for injunction and has thereby restrained the defendants in the said suit from interfering with the possession and enjoyment of the Trust over the property in question. 12. It is submitted that the Civil Court after a detailed hearing has opined that the grievance regarding proposed use of the building for commercial purpose is premature. It is further submitted that the order of injunction passed on I.A.No.II has attained finality, as the appeal filed against it has been withdrawn by the City Municipality. 13. It is further contended that the licence cannot be cancelled once construction has already commenced, except on the grounds of misrepresentation and fraud and no such allegations have been proved. - 10 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 14. It is further submitted by the Trust that the licence has been cancelled without affording an opportunity to the Trust to show cause against the proposed action. 15. Heard both sides. 16. It must be noticed that the land in Sy.No. 46/77 situated at Badagubettu Village of Udupi District, Udupi Taluk was converted by order of the Deputy Commissioner for "non-agricultural residential purpose" as per order dated 20.09.2016. 17. The building licence was obtained on 01.04.2023 by the Trust from the City Municipality, Udupi and the purpose of the first floor is mentioned as "Community Hall". 18. It is submitted that the local residents had been raising objections from the very beginning constraining the Trust to approach the Civil Court. - 11 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 19. In the suit filed by the Trust, the City Municipality, Udupi as well as local residents were parties. The Civil Court, in O.S.No.328/2023, while considering I.A. No.II filed by Trust seeking for an order of restraint against the defendants had allowed the application and recorded a finding that the building licence was issued despite objections at an earlier point of time and accordingly, the objections were deemed to have been considered. It was observed further that in terms of the Zoning Regulations, permitted residential usage includes "Places of Worship" and accordingly has held as follows: "24. ...As per Annexure I, 1(a) of this Zoning Regulation, uses permitted in residential zone includes the 'places of worship'. Therefore the argument that the plaintiff cannot use the residential building for the public worship in residential area is not sustainable in the eyes of law...". - 12 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 20. The Civil Court has further observed that the only provision for cancellation of sanction plan was under Section 188 of the Act, which provides for cancellation in the event of misrepresentation of fraudulent statement furnished while obtaining the sanction plan. 21. The Civil Court has further recorded a finding that, "30. ... Therefore, at this stage there is no materials available on record to show that the plaintiff has misrepresented the defendant and obtained the permission...". Upon allowing such application, Miscellaneous Appeal came to be filed by the City Municipality, Udupi, however, it came to be dismissed in light of the memo for withdrawal. Accordingly, the order of injunction against the local residents as well as the City Municipality, Udupi, has attained finality. 22. It is pertinent to note that the City Municipality, Udupi, had also addressed a communication to its Council expressing the desire to withdraw the Miscellaneous - 13 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR Appeal on the ground that the Trust was carrying out construction strictly in accordance with the sanction plan. 23. The order of the Civil Court was passed on 01.07.2023 and soon thereafter the local residents through Mr. Krishnarao Kodancha (complainant) once again started to make complaints to the City Municipality regarding the construction being put up by the Trust. The said complaint was rightly not taken cognizance of as per the communication dated 27.07.2023. In terms of the said communication at 'Annexure-A' (W.P.No. 21080/2023), the City Municipality has refused to take action on the ground that the order of injunction was passed in favour of the Trust. 24. Despite such communication, it appears that the Udupi Urban Development Authority has made out a communication to the City Municipality, Udupi, directing that the technical opinion given earlier was erroneous, as recommendation had been made without realizing that - 14 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR subsequently objections have been received. Accordingly, the Urban Development Authority was required to reconsider its opinion. 25. It has finally culminated in the cancellation of licence by the City Municipality, Udupi, on 15.02.2024 and the said order of termination at Annexure-'R' in W.P. No.7466/2024 is based on the following: (a) The Udupi Urban Development Authority in their communication dated 03.01.2024 has opined that there is no provision for having a Community Hall in the residential area and that purpose of plan as mentioned in the application and the sanction plan are at variance. (b) That there were certain violations in conditions of licence. 26. It must be noticed that as rightly pointed out by the Civil Court in O.S.No.328/2023 as extracted hereinabove, in terms of Annexure-'I' to the Zoning - 15 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR Regulations contained in the Master Plan (Division 1) of Udupi - Malpe Planning Area 2021, the uses permitted in the residential zone includes 'places of public worship'. 27. It is a specific case of the Trust that the proposed building is sought to be used as Prayer Hall as noticed in para-24 of the order on I.A. No.II in O.S.No.328/2023. Further, the plan/licence itself has been obtained for 'Community Hall'. The Community Hall could be deemed to be in a commercial user classification, only if the Community Hall is run on commercial basis in terms of Regulation 2.16 of the Zoning Regulations. It is the specific stand that the Trust intends to use the Community Hall as a Prayer Hall (see para 4 of petition in as a W.P.No.7466/2024). 28. Accordingly, the Community Hall being used only for prayer purpose would still fall within the category of permitted residential use in a residential zone in light of discussion supra at para-27. - 16 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 29. Once a building licence is issued under Section 188 of the Act, it can be revoked only on the ground of material misrepresentation or fraudulent statement in the notice (application) given to the Authority under Section 187 of the Act. The only contention raised by the complainant is that the Trust is using the building for the purpose which is not permissible. 30. It is to be noticed that, at present, use of the building has not commenced, as the building is still under construction. Even otherwise, in terms of discussion supra at paras-26 and 27, it is clear that the sanction plan has been obtained for construction which is of Community Hall which is sought to be used as a Prayer Hall. The use of the building when it is complete would be permissible in a residential area. 31. There is no material made out to show that there has been any misrepresentation or fraudulent statement. Further, the building is at an advanced stage of - 17 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR construction as evidenced by the photograph at Annexure- 'T' in W.P.No.7466/2024 which is not in dispute and no ground is made out for revocation of the building licence that was validly granted. The objection that the proposed construction may cause enmity amongst the local residents could not have been noted by the Development Authority to issue a direction to the City Municipality to cancel the licence. There is no statutory provision which would back such action of the Development Authority nor can such direction be binding on the Municipal Authorities on the grounds made out. 32. It is reiterated that even in the presence of the Circular, the Development Authority could not have issued a direction to the Municipal Authority without the direction being premised on vested statutory power. There is no such source of power in the present case. Where a statutory scheme is in place and occupies the field, and Circular, in exercise of executive power could confer a greater power on an Authority created by a statute. The - 18 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR source of the executive power must also be traced to the statute or a higher source of power which the Authority has not demonstrated. 33. Insofar as the contention of the availability of alternative remedy, the order passed can be interfered with in exercise of writ jurisdiction when there is blatant illegality which affects the jurisdiction of the Authority to act. Further, there is no bar for entertaining the Writ Petition where the adjudication rests on a pure question of law. 34. In the present case, the entire premise of the proceedings for revocation of plan is on the basis of proposed use of the Community Hall for prayer purposes. The assertion by the Authority that the Community Hall is impermissible in a residential area is a perverse finding, in light of the discussion supra at paras-26 and 27. The complainants as well as the City Municipality are parties in - 19 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR O.S.No.328/2023 in which an order is passed on I.A.No.II protecting the Trust which ought not to be ignored. 35. Further, the question arises as to whether there is power for cancellation of sanction plan under Section 187 of the Act. Section 187 of the Act only deals with contingencies as provided under Section 187(9) of the Act, which is not attracted in the present case. No ground is made out under Section 188 of the Act as well. Moreover, cancellation of plan pursuant to the notice under Section 187(9) of the Act is not provided for. 36. Section 187(9) of the Act only deals with - i) Commencement of construction without obtaining permission; ii) Completion of construction other wise than in accordance with plan; iii) Construction being carried out in breach of provisions of the Act, Rule or Bye-laws. - 20 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR 37. Section 187(9) of the Act does not envisage the consequence of cancellation of plan. The reference in the order at Annexure-'R' (W.P.No.7466/2024) cancelling the plan is to Section 187(9) of the Act. If that were to be so, in the absence of power of cancellation, the order at Annexure-'R' is one without jurisdiction. Accordingly, the writ would not only be maintainable, but also entertainable. 38. Insofar as the stand of Udupi Urban Development Authority that certain procedure is required to be followed when property is being put to religious use by placing reliance on Circular dated 19.09.2009, it must be noted that the cancellation of the plan in the present case is under Section 187(9) of the Act by the City Municipality. 39. Any action to be taken by the Urban Development Authority on the basis of the Circular dated 19.09.2009 would not confer power to cancel the building licence. The Circular of 19.09.2009 does not confer such - 21 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR power. Further, the validity of the said Circular has been set aside in the decision of this Court dated 29.04.2025 in W.P.No.11727/2019 - Udupi Youth Ministry v. Commissioner Urban Development Authority Adhi Udupi and Others. 40. Even otherwise, there is no action by the Urban Development Authority, except an opinion to the City Municipality which in the present case would have no binding effect in light of setting aside of the Circular dated 19.09.2009. As discussed earlier, once the Zoning Regulations permit certain activity and the building plan has been issued, there is no provision to revoke the same, except as specifically covered under the statute. There is no power for revocation of licence, as no ground is made out under Section 188 of the Act, while any violation under Section 187 of the Act though provides for consequences, does not confer power to cancel the building licence. Mere objection of local citizens cannot defeat the right to enjoy - 22 - NC: 2025:KHC:23843 WP No. 21080 of 2023 C/W WP No. 7466 of 2024 HC-KAR the property for a use permissible under the Zoning Regulations. 41. Accordingly, W.P.No.21080/2023 requires to be rejected, as the City Municipality's communication/ endorsement dated 27.07.2023 is in accordance with law and in consonance of the
Decision
order passed in O.S.No.328/2023 on I.A.ΝΟ.ΙΙ. 42. W.P.No.7466/2024 deserves to be allowed and order dated 15.02.2024 at Annexure-'R' to the said writ petition is set aside. Sd/- (S. SUNIL DUTT YADAV) JUDGE VGR